On May 9, 2022, the United States District Court for the District of Kansas issued a decision concerning the rights of school district employees with respect to transgender student policies. While the decision does not serve as mandatory authority on courts with jurisdiction over Wisconsin school districts, it is likely that courts with jurisdiction over school districts in Wisconsin will encounter similar arguments from school employees in Wisconsin.
Ricard v. USD 475 Geary County, KS School Board, No. 522CV04015HLTGEB, 2022 WL 1471372 (D. Kan. May 9, 2022) arose out of a complaint by a now-retired middle school teacher, Pamela Ricard, who alleged that school district officials violated her First and Fourteenth Amendment rights to free speech, free exercise of religion, and due process when the school district adopted and enforced two (2) policies concerning the use of students’ preferred names and pronouns.
According to Ricard’s complaint, in the Spring of 2021, school district administrators sent teachers electronic-mail messages advising them to use students’ preferred names. No formal policy had yet been adopted. Thereafter, the school district suspended Ricard for three (3) days and issued her a written reprimand after she referred to a student by the student’s last name in lieu of using the student’s preferred first name.
When Ricard returned from her suspension, the principal sent employees protocol titled, “Use of Preferred Names and Pronouns,” which mandated employee use of students’ preferred names and pronouns and advised that violators would be subject to discipline. Ricard subsequently requested a religious accommodation and appealed her prior suspension.
At a September 2021 school board meeting, the school board denied her appeal and religious accommodation request. At the same meeting, the school board adopted the “Preferred Names and Pronouns Policy” (hereinafter, “Preferred Names Policy”), mandating the use of students’ preferred names and pronouns. In October 2021, the superintendent forwarded to parents electronic-mail messages to inform them of an additional policy – the “Communication with Parents Policy” (hereinafter, “Communication Policy”) – which read as follows:
Students will be called by their preferred name and pronoun. This means if a student makes a request of a staff member to call them by a name other than their legal name as noted in the student information system – Skyward, the staff member(s) will respect the student’s wishes and refer to them with the indicated preferred name. [The District] will not communicate this information to parents unless the student requests the administration or counselor to do so, per Federal FERPA Guidance.
The following day, the principal shared the same information with teachers.
Motion for Preliminary Injunction
Ricard moved for a preliminary injunction on her free speech, free exercise of religion, and due process rights. The district court denied Ricard’s request as to the Preferred Names Policy but granted the request as to the Communication Policy.
Preferred Names Policy
For the Preferred Names Policy, the district court focused on the agreement that the school district made with employees regarding the use of preferred names in lieu of preferred pronouns: employees were not obligated to use preferred pronouns if they: (1) refrained from using pronouns for other students and (2) referred to students by their preferred names. Ricard testified that she was willing to do so. Because the school district agreed not to discipline employees that selected this option but inadvertently used pronouns to refer to some students, the court found it unlikely that Ricard could demonstrate irreparable harm from the Preferred Names Policy.
For the Communication Policy, the district court began by analyzing whether Ricard was likely to succeed on the merits of her free exercise claim.
To be successful, Ricard first had to demonstrate that the Communication Policy burdened her free exercise of religion. The district court concluded that the Policy burdened her rights because it presented her with the “Hobbesian choice of complying… and violating her religious beliefs, or abiding by her religious beliefs and facing discipline.” In reaching this conclusion, the district court focused on Ricard’s testimony. Ricard testified that she communicated with parents as part of her job and felt it dishonest to use different names and pronouns with parents. The school district argued that she could use “your child” instead. However, Ricard testified that because parents have a fundamental right to control their children’s upbringings, she felt such an approach would conceal information allowing them to do so. The district court added that refraining from using names and pronouns was “simply unrealistic.”
Having determined that the Communication Policy burdened Ricard’s free exercise of religion, the district court turned to whether the Policy was neutral and generally applicable. To be generally applicable, the Communication Policy could not “‘invite[ ]’ the [school district] to consider the particular reasons for a person’s conduct by providing ‘a mechanism for individualized exemptions,’” nor could it “prohibit[ ] religious conduct while permitting secular conduct that undermines the [school district’s] asserted interests in a similar way.” The district court concluded that because the school district applied three (3) exceptions to the Communication Policy for secular reasons, while remaining unwilling to provide exceptions for religious reasons, the Policy was not generally applicable. The three (3) exceptions included: (1) not disciplining any disclosures that the school district believed to be unintentional; (2) providing the parent(s) with education records, including those containing preferred names and pronouns, if the parent(s) requested the records pursuant to the Family Educational Rights and Privacy Act (FERPA); and (3) allowing the administration to disclose a child’s preferred name and pronouns if the child’s parent(s) asked the child’s teacher whether the school was addressing the child by a preferred name or pronouns.
Having determined that the Communication Policy was not generally applicable, the district court turned to whether the school district could satisfy strict scrutiny. To satisfy strict scrutiny, the school district had to demonstrate that the Communication Policy was (1) justified by a compelling interest at the time the Policy was adopted and (2) narrowly tailored to serve such an interest. The district court held that the school district’s purported interest at the time of adoption – that FERPA prohibited disclosure without the student’s express consent – was not compelling. The district court reasoned that, contrary to the school district’s assertion, FERPA does not prohibit such communication; rather, when parents request their children’s education records, FERPA requires disclosure of those records. The district court also provided that “FERPA does not exempt from its disclosure obligation education records that deal with preferred names or pronouns.”
Although the district court held that the school district could not satisfy strict scrutiny because the district’s interest was not compelling at the time the Communication Policy was adopted, the court analyzed other interests the district raised during the proceedings to determine whether any were compelling. For example, the district argued that administrators did not have the authority to “out” a student to the student’s parents; the court stated that “even if FERPA did not mandate that schools make education records available to parents who ask for them, the fact that it is not the school’s duty to disclose information to parents does not mean the school has a compelling interest in directing teachers to withhold or conceal such information.”
Reiterating that parents have a constitutional right to control the upbringing of their children, the district court reasoned that “[i]t [was] difficult to envision why a school would even claim-much less how a school could establish-a generalized interest in withholding or concealing information from the parents of minor children, information fundamental to a child’s identity, personhood, and mental and emotional well-being such as their preferred name and pronouns.”
Having held that none of the school district’s purported interests were compelling, the district court envisioned a scenario in which a school district might have a compelling interest in refusing to disclose such information: if there was a particularized and substantiated concern that disclosure would lead to child abuse or neglect. However, even if the school district made that argument, the district court reasoned that the Communication Policy was not narrowly tailored to serve that interest. The district court identified that the Communication Policy was (1) overinclusive because, without assessing whether disclosure of preferred names and pronouns posed a risk, the Policy prohibited disclosure of preferred names and pronouns, and (2) underinclusive because, without assessing risk, it permitted school administrators to disclose such information if a parent asked.
The district court held that Ricard was ultimately likely to succeed on the merits.
The district court next turned to whether Ricard would likely suffer irreparable harm from the Communication Policy. Here, the school district argued that Ricard was not at serious risk of suffering irreparable injury because Ricard had not been disciplined in the 2021-2022 school year and because Ricard advised the school district that she would not be returning for the 2022-2023 school year. The district court disagreed. The district court pointed out that Ricard was still likely to have to communicate with the parent(s) of a transgender student before the end of the 2021-2022 school year. In addition, Ricard’s free exercise rights had already been deprived because she had previously been forced to disavow her religious beliefs when communicating with parents.
The district court next balanced the harms to the parties. The district court held that even though the school district was trying to create a stable environment for children, “the district fail[ed] to articulate any specific, concrete harms sufficient to outweigh [Ricard’s] weighty interest in preliminary relief.”
Finally, the district court turned to whether there was public interest in the matter. Because the district court reasoned that “[i]t is ‘always in the public interest to prevent the violation of a party’s constitutional rights,’” the court found that public interest weighed in favor of granting Ricard’s motion.
Given the preceding considerations as to Ricard’s motion for preliminary injunction on her free exercise of religion claim, the district court granted Ricard’s motion through the end of Ricard’s contractual obligations to the school district. Because the district court granted her preliminary injunction on the free exercise of religion claim, the district court did not address Ricard’s other claims.
In August 2022, Ricard entered into a $95,000 settlement agreement with school district officials. With the settlement, Ricard voluntarily dismissed her First and Fourteenth Amendment claims against the school district officials. As a result, the district court never ruled on the merits of her free speech, free exercise of religion, or due process claims. Nonetheless, the holding and reasoning associated with the May 2022 decision remain good law and can serve as tool for Wisconsin school districts in assessing whether current or planned policies on preferred names and pronouns will abridge employee religious rights.
Aside from the free exercise of religion claim noted above, our firm has also been monitoring a case involving Title VII claims of discrimination and retaliation involving a teacher who refused to adhere a school district’s transgender policy. Kluge v. Brownsburg Community School Corporation, Case No. 21-2475 (7th Cir. August 11, 2021) is currently pending in the Seventh Circuit Court of Appeals, which does have jurisdiction over Wisconsin school districts. This case involves a former teacher, John Kluge, who alleges he was forced to resign after refusing to adhere to the school district’s transgender policy, which required school staff to refer to students by their preferred names listed in school records. That policy, unlike the one in Ricard, did not require staff to withhold information from parents – staff were only required to refer to students by preferred names if the school district received a written request from the students’ parents.
Kluge sued the school district raising, among other claims, First Amendment free speech and free exercise claims, as well as Title VII discrimination and retaliation claims. The school district moved to dismiss those claims, which the district court granted as to the First Amendment claims but denied as to the Title VII claims. Kluge v. Brownsburg Cmty. Sch. Corp., 432 F. Supp. 3d 823 (S.D. Ind. 2020). The school district subsequently moved for summary judgment as to Kluge’s Title VII claims. The district court granted the school district’s motion for summary judgment. Kluge v. Brownsburg Cmty. Sch. Corp., 548 F. Supp. 3d 814 (S.D. Ind. 2021). The district court reasoned that, as a matter of law, the school district demonstrated that it could not accommodate Kluge’s request for a religious accommodation without suffering undue hardship, and Kluge did not present evidence that the school district retaliated against him. On appeal, Kluge asks the Seventh Circuit to review whether the district court erred in granting summary judgment to the school district as to his Title VII discrimination/failure-to-accommodate and retaliation claims. Both parties have submitted briefs in the case. We will update you when the Seventh Circuit issues a decision.
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Laura E. Pedersen
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